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Some of labor's dramatic victories in recent years have come from organizations that, by choice or necessity, operate outside of the protections and prohibitions of labor law.

Republicans hate the National Labor Relations Board. But they're not the only ones. In speeches to workers and testimony in Congress in the '80s and '90s, then-AFL-CIO President Lane Kirkland repeatedly declared that union members would be better served by “the law of the jungle.” Some union presidents agreed, including Richard Trumka, who now heads the AFL-CIO. In 1987, Trumka called for abolishing both the law's “provisions that hamstring labor” and “the affirmative protections of labor that it promises but does not deliver.”

In other words, it's not just Mitt Romney who argues the National Labor Relations Board – which interprets and enforces labor law – does more harm than good.

That's in part because the National Labor Relations Act (NLRA), as amended by Congress and interpreted by the courts, bans or restricts labor's most effective tactics. The occupations of workplaces that fueled momentum for the NLRA, passed by Congress in 1935, are now illegal under it. The aggressive strikes – shutting down workplaces or even entire cities – that forged the modern labor movement have largely been replaced with strikes that are essentially symbolic. While anti-choice groups can target Planned Parenthood by pressuring the Komen Foundation not to fund it, and progressives can hurt Rush Limbaugh by calling on advertisers to drop his show, unions face unique legal restrictions on mounting equivalent “secondary boycott” campaigns that spread a struggle throughout a supply chain.

Of course, when Republican presidential candidates bash the NLRB, it's for restricting business, not unions. On paper, the NLRA actually commits the government “to promote collective bargaining” and requires most companies to recognize and negotiate with unions that win elections. It made it illegal for companies to spy on, threaten or retaliate against workers for union activism or other “concerted activity.”

But reality has proven to be a different story. “This labor law is a scam,” says Larry Cohen, president of the Communications Workers of America. “It is garbage. … It's a fucking lie.”

Getting around a failing law

During an organizing drive, managers can legally hold mandatory anti-union meetings in which they predict that unionization would shut down the company. Even when workers win a union election, 52 percent of the time they haven't won a union contract a year later, because managers can legally sabotage union contract negotiations by refusing to concede anything. If a union contract is in place, once it's up for re-negotiation managers can legally lock out union members, denying them any work until they accept a worse contract or vote out the union.

And companies don't restrict themselves to these legal union-busting tactics. In 57 percent of union elections, employers threaten to shut down the worksite. In 34 percent, they fire union activists. When a union activist is illegally fired, it's difficult to prove that the firing was retaliatory – and even if the government sides with the union, generally the worst that can happen to management is being forced to reinstate the worker with back pay. This process often takes years, which can be more than enough time to quash an organizing campaign. Fred Feinstein, who served under President Clinton as the NLRB's top prosecutor, says the penalties available against employers “don't provide any deterrence” for companies set on breaking a union.

Efforts to reform this legal imbalance have been failing for decades. Where labor is succeeding, it's often in spite of or outside of the law, not because of it. Major unions have abandoned government-run elections in favor of “comprehensive campaigns” that leverage some combination of worker, consumer, media and political pressure to extract agreements from companies not to terrorize or stonewall. By blocking tracks, spilling grain, and defying a restraining order in Longview, Wash., members of the International Longshore and Warehouse Union (with help from Occupy) beat back a company's attempt to do their jobs without them. Other labor organizations – like the National Domestic Workers Alliance, or “workers' centers” – are growing and achieving victories through activism without identifying as unions at all.

“The majority of our work in Justice for Janitors was trying to figure out how to negotiate around the secondary boycott laws,” says Stephen Lerner, the architect of that campaign for the Service Employees International Union. In the Justice for Janitors campaign, labor law restricted the Service Employees union (SEIU) from targeting building owners, even though they – rather than the contractors who technically employed the janitors – were the real decision-makers.

Some of labor's dramatic victories in recent years have come from organizations that, by choice or necessity, operate outside of the protections and prohibitions of labor law. Longtime farm worker Gerardo Reyes works for one such organization, the Coalition of Immokalee Workers (CIW). The Florida-based group doesn't identify itself as a union, it doesn't seek recognition as one by management or by the government, and it doesn't negotiate union contracts. But CIW has extracted “Fair Food” agreements from the growers who directly employ farm workers. CIW has won and defended agreements with the growers by pressuring – and sometimes boycotting – well-known companies at the other end of the supply chain. In February, following a multi-year campaign, CIW achieved an agreement with Trader Joe's under which the company will only buy tomatoes from growers following “Fair Food” rules.

For farm workers under CIW agreements, says Reyes, “it is better as it is right now” than it would be under the NLRA. “Would we be better off if workers in Florida or in the entire nation were covered? It's hard to tell, because that's not our reality … so we just work with what we have.”

A sobering debate

Others argue that stripping away labor law would leave unions far worse off – not because current law removes the need for aggressive worker activism, but because withdrawing the formal protection for union activity would make such activism much harder to pull off.

“If we took away the NLRA right now,” says Cornell University Labor Education Director Kate Bronfenbrenner, labor “would lose the protections that they do have when employers try to break unions.” While harshly critical of the current labor law regime, Bronfenbrenner suggests that labor leaders may use it as a scapegoat in an era of declining unionization. “It is not like unions are using the power they have” under current law, says Bronfenbrenner, who thinks labor should aggressively build coalitions, mount anti-corporate campaigns and nurture workplace activism.

Yet the fact is, if a union wanted to test its luck with fewer legal restrictions on strikes and boycotts and no legal right to recognition or negotiations, it could do so right now by legally dissolving itself and re-constituting as something more like the CIW. Historian and New Labor Forum editor-at-large Steve Fraser argues that the downside of the NLRA may be less in the explicit restrictions it enforces than in the way its existence has “locked the trade union movement into a juridical way of proceeding” and made it “doubt other tactics.”

The law is unlikely to change, argues Lerner, as long as politicians “think the consequence of not having labor law reform is there's no conflict” with the powers that be (both corporate and political). “We're more likely to get labor law reform if we're out there mass organizing the private sector and demonstrating the need.” To fix the law, he argues, we need conditions like the ones that birthed it: hundreds of thousands of workers pushing against – and beyond – the limits of current law by organizing, occupying or going on strike. It takes “ammunition,” says Lerner, “to prove … there's a crisis that needs to be fixed.”

Josh Eidelson is a freelance writer and a contributor at In These Times, The American Prospect, Dissent, and Alternet. After receiving his MA in Political Science, he worked as a union organizer for five years. His website is http://www.josheidelson.com.
Twitter: @josheidelson
E-mail: "jeidelson" at "gmail" dot com.

Ugh. Can I gain entry into a civilized country by claiming need for political asylum from this one (the US)?

Posted by Whoever on 2013-05-18 09:01:04

The NLRA mortally wounded the American Labor Movement. Stopped it dead in its tracks in 1935, which was its true purpose. No European style General Strikes Boycotts or Wildcat strikes here in the 'land of the free"..None of that "bolshy" radicalism for the mericcan labor movement. Our workers do what they are told...and anyway,tactics that work would just be unfair to sensitive capitalists.They are vastly outnumbered after all, and the commoners are mean enough already. Just LISTEN to all those hurtful things they are saying about the poor bankers.Boo Hoo Hoo. Maybe abolishing that law would be helpful, but you can damn well be sure they will replace the existing handcuffs with tighter ones. The problem is not the law per se, the problem is turning over our authority to some star chamber that is not there to serve our interests. The problem is that labor needs to start fighting for its interests again - the law is there to restrain labor,not capital.

Posted by marcus nestor on 2012-07-09 00:37:50

As long as LABOR as Union continues to morph into an intermediary business in itself, often separated by safety barriers from the actual labor it represents it will find it easy to blame the past and the NLRB for its own failures to actually represent and take on the serpent. The divide and conquer rules of engagement by the consortium of representatives for corporate interests are united by money interests. precedent setting courtroom failure has been more accurately placed at the failure of resources from fragmented, factionalized and sometimes "fictional" representation from Labor. Of course this is largely because localized and segregated from each other as they are, Union representative rarely agree to support each other financially or reach into their OWN pockets.

Unions have to stop living in the past and creating fictional meanings by "fixing" the past. The past labor groups were activists to the death...forget about today's standards of work week warriors ...and hold the contract negotiations...I have my vacation this week...mentality. Unions need to be revamped on a confederation basis where egos and cults of personality are dropped into the past and the reality of fighting corporations and their friendly courts are made the priority, along with EXPOSING THE POLITICAL NAMES of crony politicians, exposing Union Busters and educating the public about this billion dollar industry of festering fraud that is allowed ...permiotted by labor...to operate with virtual impunity...as "part of the game" ...; and finally by hiring the legal specialists that are now running unemployed from the Universities to represent a new level of true political labor organization in this great nation...WE could show the world ...if we would get out of the past and get off the ego ranks of personality cults that are rum running labor representation in this country.

Posted by BruceEWoych on 2012-06-20 18:32:19

If labor's economists believe in what they are talking about, they should put their money where their mouths are and go into business. Let's show the neoliberals how successful businesses can be when they partner with workers and make civic morality a decision criterion. Posted by Andrew Douglas Large on 2012-06-08 14:15:46

It's very, very challenging. The law is very, very bad for labor.
We don't have the law because we dont have the politicians. We don't have the polititicians because we don't have the public support.
We don't have the public support because we don't have the public affairs apparatus.
Does the AFL-CIO start spending real money on real PR pros (like the kind of pros hired to fix BP's PR crisis)? Does labor start putting up the multi-front PR war that the Chamber does through its tentacles? Is that how labor wants to spend it's money? Is that the only path to survival?
Or can organized labor cede that ground and use its resources to rethink and invest in new American workplaces - buying businesses and turning them into ESOPs/Coops? Posted by Andrew Douglas Large on 2012-06-08 14:11:59

In recent years, it has become popular for some so-called liberals to attack Cesar Chavez, in a sneaky way, by asking: Why did Cesar Chavez fail? This is a clever revisionist trick, since the question assumes the only critical answer, which is an assumption that he failed.
But Cesar Chavez did not fail. He was remarkably successful in building an organization and gaining important benefits for farm workers. Those who claim he failed are often union insiders who need to justify their own failures by diverting attention to somebody else.
Cesar Chavez understood that in order to build a true organization for the benefit of working people and the community, you need to have leadership which lives the same as the workers and is not corrupt, does not try to get rich off the dues of working people. And you also need a strong social justice component. The UFW had both. Chavez insisted all insiders be paid essentially poverty wages -- the same as all union members were paid. He did not use his position to try to get rich. The social justice component -- the idea that our nation owes all our people a decent wage and reasonable working conditions -- inspired much of the nation to support his organization.
Contrast Chavez with most union leaders today, who pay themselves hundreds of thousands of dollars per year, put aside enormous retirements benefits for themselves, while the members of their union see their own jobs disappear without a word of protest from the union, and see their wages frozen or crushed. Top leadership spends much of their life in D.C., rubbing elbows with national politicians and going to cocktail parties. Accomplishing nothing for the working people. No wonder people have no confidence in unions when the leadership has more in common with Wall Street and the politicians than they do with working people.
When the unions play on the field of management, and agree to their rules, the unions lose.
What we need is One Big Union (thanks Bill Haywood) and we need a radical re-thinking of social justice and community commitments. The primary organization to advance the rights of workers should be community based, not divided by industry. The community-based groups, since they are not unions, are not subject to the labor laws. If they decide to organize Target, for example, they can boycott and sit-in at Targets all across the country demanding a living wage, 40-hours of work, and healthcare. They also can demand free and open elections.
What should unions do? If they want the support of citizens, they need to become transparent by disclosing the assets they have hoarded through their lack of organizing, salaries, pensions and other benefits set aside and paid to insiders. They need to slash insiders' salaries to some multiple of the lowest-paid union member. Only if they meet those terms, should the community groups work with them. Without that, people would be better of setting up their own national union or representative group to negotiate on their behalf.
We also need a national campaign to return to the 40-hour week. I know of few jobs in this country which are salaries and which don't require a minimum 50, often 60 hours of work. For ever 2 people working a 60-hour work week, we could cap them at 40 hours and put another person back to work full-time.
The unions are corrupt, useless, and have obviously failed. They could turn it around, but not by living in D.C. and sucking up to politicians while lining their own pockets. They would need to work hard and be creative. I'm not holding my breath. Posted by NABNYC on 2012-05-27 16:32:53

There is a total lack of working class consciousness across-the-board. Americans can't even admit they belong to the working class, they think it is a communist phrase. (I once heard Chris Mathews on MSNBC chide a commentator for using the words.) In the formative phase of unionism in this country, (40-50 years before the NLRB), we had an active left; with socialists, anarchists and trade unionists competing in the open marketplace of ideas. The IWW also played an important part in securing free speech rights. It was this groundwork that made the New Deal possible. Over the years even active union members forgot the struggles that got them to where they were, until they thought they all had it coming. The bottom fell out in the last forty years and the blue collar workers are now left holding an empty bag. How do we regain that early militancy? If there is no fire in the belly, nothing will ever happen. Of course getting the jobs back to organize is a key component in this equation. You can't unionize an empty factory or a vacant lot. Posted by Staten Island Bob on 2012-05-25 19:32:03